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Judging Judicial Discretion: Legal Factors and Racial Discrimination in Sentencing

NCJ Number
Law & Society Review Volume: 35 Issue: 4 Dated: 2001 Pages: 733-764
Shawn D. Bushway; Anne Morrison Piehl
Date Published
32 pages
This study examined whether significant judicial discretion in sentencing existed in Maryland courts, and whether such judicial discretion was related to racial discrimination in sentencing.
Variation in sentencing outcomes involves the actions of a number of members of the criminal justice system. To isolate that part of the sentencing variation that is due to the discretion of the judge (or other criminal justice agent such as a prosecutor), the sentencing guidelines themselves can be modeled. Such a model captures any non-linearity in the sentencing grid. In practice, modeling the guidelines rather than legal-factor scores (as is common in the literature) means that more of the variation that race and legal factors have in common will be attributed to the racial status of the offender. This model was applied to data on sentenced offenders in Maryland whose offenses occurred in the period after a set of sentencing reforms were in place on July 1, 1987, and continuing for 8 years. The resulting sample was 14,633 people. The analysis of the sentencing data found that African-Americans had 20-percent longer sentences than whites on average, holding constant age, gender, and recommended sentence length from the guidelines. The study found more judicial discretion and greater racial disparity than was generally found in the relevant literature. Moreover, in an attempt to explain this discretion, the study found that judges tended to give longer sentences, relative to those recommended by the guidelines, to people in the part of the guidelines grid with longer recommended sentences than they gave to people in the part of the grid with lower recommended sentences. The people in the former guidelines grid were disproportionately African-American. Based on the analytical model used in this study, suggestions are offered for future research in this area. 5 tables, 44 references, and appended explanation of Maryland guideline scoring